University of Chicago Legal Forum
Volume 1989
Article 17
1989
Paternal Interests in the Abortion Decision: Does
the Father Have a Say?
Molly Diggins
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Diggins, Molly (1989) "Paternal Interests in the Abortion Decision: Does the Father Have a Say?," University of Chicago Legal Forum:
Vol. 1989, Article 17.
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Paternal Interests in the Abortion Decision:
Does the Father Have a Say?
Molly Digginst
On November 14, 1988, in Conn v Conn' the Supreme Court
affirmed without opinion an Indiana Supreme Court decision rejecting a man's attempt to block his estranged wife from having an
abortion. If the court had granted certiorari on that case, it would
have had to reconsider the question of whether and to what extent
a man has a right to influence a woman's decision to have an abortion.2 Thirteen years ago the Court decided in Planned
Parenthood of Central Missouri v Danforth' that a man may not
exercise a unilateral veto over his wife's ability to have an abortion.4 The holding in Danforth, however, did not preclude a range
of rights-short of a veto-that a man may assert against his wife's
decision to abort. The Court's refusal to hear Conn is indicative of
its reluctance to address the difficult and controversial issue of paternal rights in the abortion decision, an issue which should ultimately be settled.'
This comment will propose a state statute that would consider
the father's interests prior to the mother procuring an abortion.
t A.B. 1987, College of the Holy Cross; J.D. Candidate 1990, University of Chicago.
2
109 SCt 391 (1988).
In Planned Parenthoodof Central Missouri v Danforth, 428 US 52, 67-72 (1976), the
Court invalidated a law requiring that a woman obtain the father's consent to an abortion.
Subsequent cases presenting the issue of paternal control over an abortion have usually
arisen in the context of individuals seeking to block an imminent abortion and have been
decided by individual Justices in their capacity to hear emergency pleas. See Doe v Smith,
108 SCt 2136 (June 15, 1988), on emergency appeal to Justice Stevens in his capacity as
Circuit Justice for the Seventh Circuit; but see Lewis v Lewis, 57 USLW 3373, cert denied
(Nov. 28, 1988) (dissolution of injunction prohibiting woman in pending divorce from having
an abortion of child conceived between parties during pendency of divorce action, because
injunction interferes with rights set forth in Roe v Wade, 410 US 113 (1973), and Danforth).
' 428 US 52.
' Id at 71.
The Court recently decided a Missouri case which addressed the constitutionality of a
state statute regulating abortion. Webster v Reproductive Health Services, 57 USLW 5023
(July 3, 1989). While the case raises several constitutional questions pertaining to the issue
of abortion, the Court did not explicitly reconsider Roe nor does the case address questions
specifically concerning paternal interests. Webster is important for the effect it has on the
present legal status of a woman's right to an abortion and does not affect the status of
paternal rights to control a woman's abortion.
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THE UNIVERSITY OF CHICAGO LEGAL FORUM
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The comment will show that the statute would withstand constitutional scrutiny. While the holding in Danforth denies the father a
unilateral veto over an abortion,6 that decision does not forbid a
state law which balances a potential father's interests against the
mother's right to an abortion. Indeed, the landmark decision in
Roe 7 actually allows state legislatures to regulate abortion in a
manner similar to that of the proposed statute. In addition, the
Supreme Court has identified several interests of individuals, including men, relating to the creation and ordering of a family that
are protected by the right of privacy. These arguably provide a
man some degree of constitutional protection for his freedom to
procreate and raise a family. Finally, there are state interests in
promoting marriage and protecting the procreative potential of its
citizens which incidentally may safeguard a prospective father's interest in his unborn child.
I.
THE STATE OF THE LAW CONCERNING A FATHER'S ABILITY TO
INTERVENE IN AN ABORTION
In 1973, the U.S. Supreme Court ruled in Roe v Wade that a
woman's ability to choose to have an abortion is a "fundamental
right" protected by the U.S. Constitution.' While the Court did
not address in Roe whether spousal consent to an abortion can
constitutionally be required,9 it later held in Danforth10 that "the
State may not constitutionally require the consent of the spouse
• . . as a condition for abortion during the first 12 weeks of pregnancy."" The Court in Danforth recognized both the "interest
that a devoted and protective husband has in his wife's pregnancy"
and "the importance of the marital relationship" to American society.' 2 However, it found that by requiring spousal consent to an
abortion, the statute essentially "determined that the husband's
interest in continuing the pregnancy of his wife always outweighs
any interest on her part. .
..
"' The Court viewed the husband's
statutorily conferred power as the equivalent of a unilateral veto,"
and concluded:
6 428 US at 69-70.
' 410 US 113.
B Id at 153-56.
Id at 165 n 67.
428 US 52.
"Id at 69.
12 Id.
3 Id at 70 n 11.
'o
14
Id.
377]
PATERNAL INTERESTS
We recognize, of course, that when a woman, with the approval of her physician but without the approval of her
husband, decides to terminate her pregnancy, it could be
said that she is acting unilaterally. The obvious fact is
that when the wife and the husband disagree on this decision, the view of only one of the two marriage partners
can prevail. Inasmuch as it is the woman who physically
bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the
balance weighs in her favor.' 5
Lower courts have consistently interpreted Danforth to invalidate any statutory provisions that effectively granted the prospective father a unilateral veto over the woman's decision to have an
abortion. 6 Essentially, Danforth has precluded state legislatures
from enacting statutes which would require spousal consent before
a doctor may perform the abortion procedure." At the same time,
lower courts have reached different conclusions as to whether Danforth precludes the assertion by the prospective father of any
rights, other than that of consent, as an unconstitutional infringement upon the woman's right to an abortion.'" Any procedure that
may result in preventing a woman from having an abortion could
be considered a veto. And to the extent that such a procedure can
be initiated by one person it could be considered unilateral. Still,
current jurisprudence permits the imposition of certain regulations
on the ability of a woman to obtain an abortion. 9 Where a proce-
Id at 71.
" See, for example, Scheinberg v Smith, 659 F2d 476, 482-87 (5th Cir 1987), where the
Fifth Circuit upheld a statute requiring notification of the spouse prior to an abortion. But
see Eubanks v Brown, 604 F Supp 141 (W D Ky 1984) and Planned Parenthoodof R.I. v
Board of Medical Review, 598 F Supp 625 (D RI 1984), both invalidating statutes requiring
notification of the spouse.
7 See, for example, Maher v Roe, 432 US 464, 473 (1977); Harris v McRae, 448
US 297,
314 (1980); and City of Akron v Akron Center for Reproductive Health, 462 US 416, 464
(1983)-all recognizing that Danforth precludes the "absolute requirement of spousal consent for an abortion." Harris, 448 US at 314.
18
See discussion at pp 380-81.
" For the Court's analysis of other regulations see Danforth, 428 US at 64-67, upholding the requirement that a pregnant woman "certif[y] in writing her consent to the [abortion];" and the requirement that when an abortion is performed, a tissue sample be submitted to a certified pathologist for a report; Planned ParenthoodAssociation of Kansas City v
Ashcroft, 462 US 476, 493 (1983), upholding the requirement of parental consent, with alternatives for authorization, to a minor's abortion decision and the requirement of the attendance of a second physician at a post viability abortion procedure; L. Matheson, 450 US 398,
410-13 (1981), upholding a requirement of notification concerning a minor's decision to have
an abortion.
"
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THE UNIVERSITY OF CHICAGO LEGAL FORUM
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dure exists to allow consideration of the interests of other parties,
the fact that one party initiates such a procedure does not render
it a "unilateral" veto.
Both state and federal courts have reached different conclusions on the question of whether fathers have a right to notice of
an impending abortion.2 In 1981, the Fifth Circuit in Scheinberg v
Smith2 held constitutional a statute requiring that a married woman give her husband notice of the proposed termination of pregnancy. The state justified the notice provision as furthering two
interests: maintaining and promoting the marital relationship, and
protecting a husband's interest in the procreative potential of the
marriage. 2' The court "weighed together" the state interests and
balanced them against those of the mother, finally concluding that
the Florida statute did not "run afoul of the concerns emphasized
in Danforth. The statute requires notice, not consent . . . . The
intrusion into a woman's ability to exercise freedom is thus much
'28
less here than in Danforth.
Two U.S. district courts, however, have refused to limit the
holding in Danforth solely to the right to consent and, accordingly,
struck down statutes that recognize paternal interests. 2 In Eubanks v Brown and Planned Parenthoodof Rhode Island v Board
of Medical Review, the respective courts interpreted Danforth to
hold that the woman has "the right to unilaterally terminate her
pregnancy, '2 5 and that'this right preempts any right asserted by
the putative father. Accordingly, the courts struck down state statutes requiring notification of the woman's husband prior to an
abortion.
The differing holdings in Scheinberg, Eubanks and Planned
Parenthoodof Rhode Island concerning a prospective father's ability to assert any rights as against the woman's right to an abortion
can be attributed to the ambiguous holding in Danforth. The court
in Scheinberg emphasized that Danforth acknowledged paternal
rights" and did not preclude the possibility of balancing these interests, provided their exercise amounts to less than a unilateral
"' See n 18.
2 659 F2d 476.
21
Id at 483.
21 Id at 485.
" See Eubanks, 604 F Supp 141, and Planned Parenthood of RI, 598 F Supp 625.
1 Eubanks, 604 F Supp at 148, citing Danforth, 428 US at 70-71; see also Planned
Parenthoodof RI, 598 F Supp at 638.
" Danforth, 428 US at 69.
377]
PATERNAL INTERESTS
veto, with those of the mother.17 Scheinberg thus can be read as
narrowing the Danforth holding to a prohibition solely of a father's
unilateral veto power.
The Eubanks and Planned Parenthoodof Rhode Island decisions, by contrast, were based on the Danforth dicta that "as between the man and the woman, the balance weighs in her favor."2
The Indiana Appellate Court in Conn adopted the interpretation
of Danforth advanced in Eubanks and Planned Parenthood of
Rhode Island.29 In sum, the Eubanks, Planned Parenthood of
Rhode Island and Conn decisions stand for the proposition that
Danforth precludes any balancing of rights, regardless of the validity of the rights asserted. 0
Despite the uncertainty at the lower court level about the
reach of Danforth, the Supreme Court has not definitively spoken
on whether Danforth precludes any consideration of the father's
interests in an abortion decision. Since Danforth, individual Justices have considered several emergency appeals by fathers seeking
to influence abortion decisions, but have, for the most part, disposed of the appeals with little or no comment on the issue of paternal rights."' In Doe v Smith,32 however, one such emergency
opinion suggested that a balancing of the father's rights against
those of the mother may indeed be permissible.
In Doe v Smith, a prospective father sought to enjoin a woman
from proceeding with an abortion. 3 The Indiana Supreme Court
affirmed the findings of the trial court judge who stated that "although the Plaintiff has expressed a legitimate and apparently sin"' As discussed at pp 370-79, the Court concluded in Danforth that a requirement of
spousal consent effectively amounted to a veto because the father's interest "always outweigh[ed] any interest on [the mother's] part." 428 US at 70 n 11. However, the Court has
upheld restrictions which would not automatically deprive the woman the right to an abortion but rather would initiate a certain process ultimately enjoining the woman from the
exercise of her right. The parental notification requirement upheld in Ashcroft, 462 US at
476, could trigger a process through which a court would determine that the minor should
not obtain an abortion, because of, for instance, immaturity. The notification requirement
would not automatically deprive the minor of the right to an abortion.
" 428 US at 71.
'
"The language and holding in Danforth is unambiguous and unqualified. A married
woman has an unconditioned right to have an abortion in the first trimester. . . . Danforth
in plain language struck down the balancing argument presented here, and even used the
term 'for any reason' in holding that a husband has no right to veto the wife's decision to
have an abortion." Conn v Conn, 525 NE2d 612, 616 (Ind App 1988).
30 Conn, 525 NE2d at 616; Eubanks, 604 F Supp at 148; Planned Parenthood of RI, 598
F Supp at 638.
" See, for example, Lewis v Lewis, 57 USLW 3373, cert denied (Nov. 28, 1988).
32 108 SCt 2136 (1988) (Stevens, as Circuit Justice for the Seventh Circuit).
33
Id.
382
THE UNIVERSITY OF CHICAGO LEGAL FORUM
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cere interest in the unborn fetus, his interest would not be sufficient to outweigh the Constitutionally protected right of the
Defendant to abort her child."34 In reaching this conclusion, the
trial judge weighed evidence such as the fact that "the parties are
not married, that there is no suggestion they will ever reunite, that
the Plaintiff is able to father other children and .
. has showed
substantial instability in his marital and romantic life."' 35 The
judge also noted that "even if the Danforth decision permits the
Court to balance the interest of the father of the unborn child
against those of the mother, in this
particular case the balancing
36
would be in the mother's favor.
In affirming the trial court and Indiana Supreme Court decisions, Justice Stevens did not address whether the balancing done
by the trial court was, in fact, permissible under Danforth or any
other Supreme Court opinion. Rather, he stated:
Since such balancing has already been done by the trial
court, since the Indiana Supreme Court has indicated
that there is a presumption of correctness to the decision
of the trial court in a matter of this kind, and since there
is some danger that a delay in implementing [the defendant's] decision may increase the risk of physical or emotional harm to [the mother], petitioner's claim provides a
particularly weak basis for invoking the extraordinary ju37
dicial relief that is sought.
Stevens' brief opinion in Doe falls short of endorsing the balancing by which the lower courts concluded that the father's rights
and interests did not outweigh those of the mother. Instead, he
simply indicated that given the result yielded by the lower courts'
balancing, he could not re-examine whether the balancing process
itself was proper. The Doe opinion thus suggests that Danforth
fails to foreclose consideration and balancing of paternal interests
in addressing a father's request to enjoin an abortion.
II.
PATERNAL AND STATE INTERESTS IN THE ABORTION DECISION
Two groups of Supreme Court cases consistent with a narrow
reading of Danforth support balancing, to a limited extent, of
3, Id at 2137.
"
31
37
Id.
Id (emphasis added).
Id.
PATERNAL INTERESTS
3771
rights in an abortion decision. Roe v Wade, 8 though establishing a
woman's right to choose an abortion, to some extent qualified that
right as subject to a process which balanced all "the relative
weights of the respective interests involved." 9 Although finding
that the right of privacy embedded in the Ninth and Fourteenth
Amendments to the Constitution was "fundamental," the Court
noted that "a State may properly assert important interests in
safeguarding health, in maintaining medical standards, and in protecting potential life."' 0 Roe thus established that the woman has a
constitutionally protected right to choose to have an abortion, but
that a state may regulate that right beyond the first trimester as
long as the regulation is pursuant to "compelling state interests.""'
Such interests become compelling only upon the viability of the
fetus.
In Roe, the Court explicitly rejected the argument that "the
woman's right is absolute and that she is entitled to terminate her
pregnancy at whatever time, in whatever way, and for whatever
reason she alone chooses.' 2 The Court instead held that the privacy right to choose abortion can be restricted during certain periods of the pregnancy if the state can assert an important interest
in regulation."3
The state's interest in protecting paternal rights was not an
issue in Roe, yet Roe did not dismiss outright state interests in
paternal rights. 4" The Court emphasized that its holding was "con- 410 US 113 (1973).
", Id at 165.
40
Id.
Id. It seems that the Roe decision absolutely prohibits the assertion of these interests, and therefore state regulation, during the first trimester of pregnancy. If Roe is meant
to have already completed the balancing of state interests against the rights and interests of
the woman during the first trimester and to have found that, no matter what state interest
may be asserted, the rights of the woman always prevail during that time, then all state
regulation attempting first trimester regulation would be considered unconstitutional. But
see Conn v Conn, Brief for the Petitioner at 11, challenging the assumption that Roe does
the balancing once and for all in favor of the woman for the first trimester. For purposes of
this comment, it is assumed that the proposed statute is designed only to regulate abortions
after the first trimester. However, see n 110, where it is argued that the father's right ought,
for fairness reasons, to extend into the first trimester.
4" Roe, 410 US (emphasis added). In his concurrence, Chief Justice Burger highlighted
only the qualified nature of the right: "Plainly the Court today rejects any claim that the
Constitution requires abortions on demand." Doe v Bolton, 410 US 179, 208 (1973) (Burger
concurring in both Doe v Bolton and Roe).
"s "The right of personal privacy includes the abortion decision, but ...
this right is
not unqualified and must be considered against important state interests in regulation." Id
at 154.
" Id at 165 n 67. "Neither in this opinion nor in Doe v. Bolton . . . do we discuss the
4'
384
THE UNIVERSITY OF CHICAGO LEGAL FORUM
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sistent with the relative weights of the respective interests involved" and "leaves the State free to place increasing restrictions
on abortion . . .so long as those restrictions are tailored to the
recognized state interests."' 5 Thus, Roe failed expressly to foreclose states from limiting the abortion right in order to protect
other interests, one of which is that of the father.
The Court has recognized two categories of state interests
which, in the context of abortion, incidentally protect paternal interests. The first encompasses those interests that promote the exercise by individuals (including males) of certain fundamental
rights: rights to the procreation, care, custody and companionship
of their children and potential children. The Court has established,
within the rubric of substantive due process, that both men and
women have rights to procreate, create and order a family unit and
be assured of the custody of their children without government interference, even when the exercise of these rights challenges traditional assumptions or customs.' 6 While the government may restrict the exercise of these rights, it must do so in a way that
accounts for the particular circumstances of the individual's situation. A state may not, in protecting these fundamental rights, consider the gender of the affected individuals;"7 in other words, given
a conflict between the relative fundamental rights of the male and
female parental members of a relationship, neither party's inter-
father's rights, if any exist in the constitutional context, in the abortion decision." Id (cita-
tion omitted).
" Id at 165.
" Several important cases challenged traditional assumptions concerning the "primary
caretaker" in a marriage and traditional family structure. See, Stanley v Illinois, 405 US
645, 654-58 (1972), striking down an Illinois statute that automatically made children of
unwed fathers wards of the state on the death of their mothers; Quilloin v Walcott, 434 US
246, 256 (1978), upholding law denying veto to unwed fathers who had exercised no custody
or control over his children where the adoption was determined to be in the best interests of
the child; Skinner v Oklahoma, 316 US 535, 541 (1942), holding that a statute providing
sterilization for habitual criminals violates right to procreate as deprivation of "liberty"
without due process; Santosky v Kramer, 455 US 745, 747 (1982), concluding that "[blefore
a State may sever completely and irrevocably the rights of parents in their natural child [on
grounds of neglect], due process requires that the State support its allegations by at least
clear and convincing evidence;" Moore v City of East Cleveland, 431 US 494 (1977), invalidating city ordinance limiting occupancy of any dwelling unit to members of the same "family," where the ordinance narrowly defined "family" as including only a "few categories of
related individuals."
" It is important to note that, in the cases cited in note 46, the Court either applied the
rights equally to both sexes-Skinner, 316 US at 535, Santosky, 455 US at 745, Moore, 431
US at 494 or sought to eradicate a formerly unequal application of those rights-Stanley,
405 US at 645 and Quilloin, 434 US at 246. Nowhere does the Court automatically skew a
fundamental right in favor of one sex to the detriment of the other.
PATERNAL INTERESTS
3771
ests automatically trump."8
There is a second group of interests that provide support for
the recognition of paternal rights in the abortion decision through
the legitimate protection of other state interests. Thus, paternal
rights receive incidental protection under the umbrella of "compelling state interests" which may serve to justify legislative restrictions on a woman's right to an abortion.4 9 The Court has enumerated interests which a state may "properly assert" against the
woman's right of privacy; these include: safeguarding health, maintaining medical standards and protecting potential life.8 0 In the
context of abortion, the principal interests which a state might
deem compelling and which incidentally protect paternal rights are
the interests in promoting marriage and protecting the individual's
procreative potential.
Lower courts disagree over whether a state may properly assert interests in marriage and family as justifications for limiting a
woman's access to an abortion. On the one hand, the court in
Scheinberg found that the state's interest in maintaining and promoting the marital relationship and protecting a husband's procreative potential "justify the burden on a woman's abortion decision" imposed by any degree of state interference." The court
relied on three Supreme Court cases which stated that the creation
and protection of marriage and family are "primarily . . .matter[s] of state concern."52 On the other hand, other courts have not
found such interests "sufficiently compelling to override a funda53
mental right."
"
Indeed, several of these decisions call for a neutral weighing to allow for additional
consideration of the interests of a third party, such as the child. See, for example, Caban v
Mohammed, 441 US 380, 393 (1979) (law allowing the adoption of an illegitimate child without the natural father's consent violates due process where even those fathers who have
"established a substantial relationship with the[ir] child and ha[d] admitted [their] paternity" have no opportunity to present their interests).
,' Roe, 410 US at 155 ("fundamental" right may only be limited by a "compelling state
interest").
50 Id at 154. As noted earlier, the Court explicitly did not address the issue of weighing
paternal rights in an abortion decision. Roe, 410 US at 165 n 67.
659 F2d at 483.
Id, citing Sosna v Iowa, 419 US 393 (1975); Labine v Vincent, 401 US 532 (1971);
Estin v Estin, 334 US 541 (1948).
"
2
" Planned Parenthood of RI, 598 F Supp at 638. See also, Eubanks, 604 F Supp at
146-48, and Poe v Gerstein, 517 F2d 787, 796-97 (5th Cir 1975) (holding both parental and
spousal consent requirements unconstitutional).
386
THE UNIVERSITY OF CHICAGO LEGAL FORUM
[1989:
A. Paternal Rights Guaranteed by the Constitution
In Roe, the Court founded the woman's right to an abortion
upon a concept of privacy that embodied certain fundamental
rights relating to marriage, procreation and family ordering. 4
While the Constitution does not explicitly mention any right of
privacy, 5 the Court reasoned that the notion of privacy emanated
from the Ninth and Fourteenth Amendments. The Court additionally has concluded that "one aspect of the 'liberty' protected by
the Due Process Clause of the Fourteenth Amendment is 'a right
of personal privacy, or a guarantee of certain areas or zones of privacy.' "56 While the "outer limits" of that protection have not as
yet been drawn, the Court has made it clear that "only personal
rights that can be deemed 'fundamental' or 'implicit in the concept
of ordered liberty' are included in this guarantee of personal privacy. '' 57 Activities most often considered within the zone of privacy
are "matters relating to marriage, procreation, contraception, family relationships, and child rearing and education."58 The Court
has demonstrated a reluctance to extend constitutional "privacy"
protection beyond these categories.59 Rather, it has confined protection to liberties "'deeply rooted in this Nation's history and
tradition,'" such as those involving traditional family relationships, heterosexual marriage, or procreation. Moreover, the Court
has characterized as "fundamental" several rights of males who, by
virtue of their involvement in "family relationships, marriage, or
procreation," are entitled to due process and equal protection
safeguards. 1
The right of privacy shields the right to procreate and the
right to keep custody of one's own children from government interference absent a showing that "compelling interests" justify the
state intrusion." The Court has labelled procreation as "one of the
410 US at 152-53.
Id at 152.
" Carey v Population Services International,431 US 678, 684 (1977), citing Roe, 410
US at 152.
Roe, 410 US at 152 (citation omitted).
' Paul v Davis, 424 US 693, 713 (1976).
" See Bowers v Hardwick, 106 SCt 2841, 2844 (1986),
where the Court upheld the application of a Georgia statute criminalizing sodomy against homosexuals reasoning that the
Constitution does not confer a fundamental right upon homosexuals to engage in sodomy.
0 Id at 2844.
Procreation is a right fundamental to the liberties afforded every man and woman by
the Constitution. "Marriage and procreation are fundamental to the very existence and survival of the race." Skinner, 316 US at 541.
, Id at 541; Stanley, 405 US at 651.
"
PATERNAL INTERESTS
3771
basic civil rights of man."6 3 Roe, citing Skinner, made clear that
regardless of whether the right to procreate is itself constitutionally protected, procreation falls within the protection afforded the
right of privacy.6 ' While allowing a woman to choose to have an
abortion without considering the interests of the prospective father
does not permanently prevent him from exercising the right to
procreate as would, for example, mandatory sterilization at issue in.
Skinner, it does implicate his interest in procreation. It could be
argued, therefore, that the state's failure to take a paternal interest
into account infringes a male's right to procreate.
The right of privacy also encompasses rights inherent in the
parent/child relationship. In Santosky v Kramer," the Court
stated that natural parents have a "fundamental liberty interest
. . . in the care, custody, and management of their child," which a
state may not dissolve absent a showing of parental unfitness."
This interest, moreover, can be invoked by either the father or the
mother. In Quilloin v Walcott,67 the Court recognized that a
mother may not unilaterally consent to the adoption of a child, but
limited the father's ability to consent to circumstances in which he
has exercised custody or control over his child. 8
We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected. "It is cardinal with us that the custody, care and
nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." And it
is now firmly established that "freedom of personal
choice in matters of.
.family life is one of the liberties
protected by the Due Process Clause of the Fourteenth
'
Amendment."69
Rights inherent in the parent/child relationship are also protected under the Equal Protection Clause, and the Court has explicitly held that men have as much entitlement to these rights as
women do. In Stanley v Illinois70 the Court struck down a law pro-
63
Id.
" 410 US at 152.
05 455 US 745 (1982).
66 Id.
67 434 US 246 (1978).
68 Id at 256.
69 Id at 255 (ellipsis in original) (citations omitted).
70 405 US 645 (1972).
388
THE UNIVERSITY OF CHICAGO LEGAL FORUM
[1989:
viding for the automatic separation of an unwed father from his
children upon the death of their mother, regardless of his fitness."
The Court reasoned that despite a severed relationship between
the parents, a father's rights to custody of his children remain as
important as those of the mother,7 2 and that a state may not discriminate on the basis of sex by making it relatively easier to terminate the father's rights."
It is thus established that a father has constitutionally protected rights in the procreation, custody, and companionship of his
children. Absent a compelling interest, the state may not exercise a
role in decision making within the family unit. The decision in Roe
has no effect on this proposition. Roe simply allowed a woman, in
consultation with her physician, to make a decision to terminate a
pregnancy within the first trimester unless compelling interests
justified state interference with that decision.
There is, moreover, no principle in the Court's jurisprudence
on parental rights that suggests parental rights of women are entitled to greater protection than those of men. State restrictions on
rights to procreate, to care for, or to exercise custody over children
are subject to the same scrutiny whether those restrictions affect
men or women. Accordingly, no legislature should disregard the
due process protection awarded to both paternal and maternal
rights, or honor one over the other, absent a fair evaluation and
balancing of those rights in light of surrounding circumstances.
B. Compelling State Interests
Because paternal rights enjoy the same constitutional status as
maternal rights, they deserve equivalent Fourteenth Amendment
protection. A woman's decision to obtain an abortion implicates interests of both the state and the prospective father. There are two
principal interests a state might seek to protect from such infringement, and by so doing, would incidentally protect the interests of
the prospective father: the promotion of marriage and the protection of the procreative potential of its members.
1. The State's Interest in Marriage
Roe makes clear that decisions concerning marriage and family
relationships fall within the same "zone of privacy" as a woman's
decision to have an abortion.74 As a result, a state may not inter' Id at 658.
7, Id at 654.
" Id at 651.
7o410 US at 152-53: "In a line of decisions.
. .
the Court has recognized that a right of
PATERNAL INTERESTS
377]
fere with these decisions absent a compelling interest. 75 The Court
explained in Stanley:
The rights to conceive and to raise one's children have
been deemed "essential," "basic civil rights of man," and
"[flights far more precious . . . than property rights
. ... It is cardinal with us that the custody, care and
nurture of the child reside first in the parents, whose primary function and freedom include preparation for the
obligations the state can neither supply nor hinder." The
integrity of the family unit has found protection in the
Due Process Clause of the Fourteenth Amendment, and
70
the Ninth Amendment.
Marriage serves as the central organizational component for
the family unit and society: "Marriage . . . [has] more to do with
the morals and civilization of a people than any other institution.
. . ."7 Because the institutions of marriage and the family occupy
and shape the contours of our society, the state may regulate
where "such regulation . . . furthers or maintains the integrity of
these institutions," and, despite the interest in protecting privacy
within the institutions,7 when a state views the unrestrained right
of a woman to choose an abortion as a threat to marriage, it should
be permitted to regulate that right in the interest of preserving the
institution.
How would the right of a woman to an abortion threaten the
institution of marriage? In Griswold v Connecticut,79 the Supreme
Court considered harmony between and unity of the parties as central to the institution's success: "Marriage is a coming together for
better or for worse, hopefully enduring, and intimate to the degree
of being sacred. It is . . . a harmony in living . . . a bilateral loypersonal privacy, or a guarantee of certain areas or zones of privacy, does exist under the
Constitution. . . .[Tihe right has some extension to activities relating to marriage; procreation; contraception; family relationships; and child rearing and education." (citations
omitted).
Id at 155.
405 US at 651 (citations omitted).
Maynard v Hill, 125 US 190, 205 (1888) (state has power to regulate method by
which one becomes married).
'8 Scheinberg, 659 F2d at 483, citing Poe, 517 F2d at 787. The Supreme Court has
written: "[Tihe power to make rules to establish, protect, and strengthen family life . . . is
committed by the Constitution of the United States and the people of [a state] to the legislature of that state." Labine v Vincent, 401 US at 538 (holding that a statutory intestate
succession scheme was within the State's power to establish rules for the protection and
strengthening of family life).
79 381 US 479 (1965).
70
390
THE UNIVERSITY OF CHICAGO LEGAL FORUM
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alty."8 ° A woman's unilateral right to make an abortion decision,
by threatening the "harmony in living" and "bilateral loyalty," undermines the institution of marriage.8 ' Essentially, the right to a
unilateral decision by the female would remove the need for communication concerning what many, males and females alike, consider an important aspect of marriage: procreating and raising children. e" Moreover, the male in such a marriage relationship could
perceive himself as a partner with less than equal rights in procreation and, as a result, may lose the incentive to undertake a commitment in which his rights are not on par with those of his female
partner.8 3
Unilateral control over the abortion decision can operate to
destabilize the institution. The Court in Danforth noted, with respect to the male partner's power of an abortion veto:
No marriage may be viewed as harmonious or successful
if the marriage partners are fundamentally divided on so
important and vital an issue. But it is difficult to believe
that the goal of fostering mutuality and trust in a marriage, and of strengthening the marital relationship and
the marriage institution, will be achieved by giving the
husband a veto power exercisable for any reason whatsoever or for no reason at all. 4
This rationale applies with equal force when the word "wife" is
substituted for "husband." It would make little sense for the
Court, or for any state, to fear problems posed to the institution of
marriage by male domination of the procreative process but not by
female domination of the same process.
While the Court has on numerous occasions recognized the interest of the states in maintaining and protecting the traditional
marriage unit, it has not ignored the changes taking place within
the marriage/family unit and American society. The advent of nofault divorce, legalized contraception, and child custody rights for
80
Id at 486.
81 Id.
82
"Since the woman, by repeatedly having abortions, prevents a man from procreating
offspring within the marriage relationship, an infringement of his fundamental right to a
family. . .has arguably occurred." Poe, 517 F 2d at 796 (citation omitted).
83 It may be argued that state intervention in such relationships would be futile where
communication on an important aspect of the relationship has already failed. However, legislation forcing recognition of the respective procreative rights of partners within a relationship clears the way for communication and compels both parties to consider the ramifications of the exercise of their rights prior to entering the relationship.
8 428 US at 71.
3771
PATERNAL INTERESTS
unwed fathers, signal a "basic shift in the way society and the
courts view the family."8' 5 The constitutional right of privacy has
been interpreted as "not a family right, but an individual right."8' 6
For example, the holding in Eisenstadt v Baird,8 7 which extended
to single people the right to use contraceptives, "suggest[s] that a
married couple is not a separate legal entity, but rather a coupling
of two independent and unique individuals." 88 Under this view,
"when the law transfers moral decisions, it transfers them to individuals rather than to families, thus sustaining the image of the
family as a collection of discrete individuals."89
The Court's decisions concerning the rights of unwed parents,
married or unmarried, in an adoption proceeding are consistent
with the notion of the family as a collection of individuals. All parents have a constitutional right to a hearing on their fitness as parents before the state may remove their children from their custody.9 0 Even where only one parent is empowered to decide the
custody of the children, some judicial evaluation of the particular
facts of the case and the interests of the parties is necessary.9 1
Where the male parent, even if unmarried, has demonstrated the
responsibility and interest inherent in the parental role he is entitled to notice and to a hearing to present his interests.9 " Anything
less unconstitutionally "discriminate[s] against unwed fathers..
when their identity is known and they have manifested a significant parental interest in the child."9 These cases "[suggest] that
unwed fathers who claim competency and who desire to care for
their children are entitled to notice and a hearing prior to the termination of their parental rights." 4
This principle can be extended to cases in which a father
Jane Rutherford, Beyond Individual Privacy: A New Theory of Family Rights, 39 U
Fla L Rev 627, 628-29 (1987).
8 Id at 636.
'
405 US 438 (1972).
88 Rutherford, 39 U Fla L Rev at 636, citing Eisenstadt, 405 US at 463 (cited in note
85).
'. Id at 640, citing Schneider, Moral Discourse and the Transformation of American
Family Law, 83 Mich L Rev 1803, 1858 (1985).
90 Stanley v Illinois, 405 US 645, 658 (1972).
91 Quilloin v Walcott, 434 US 246, 254-56 (1978) (law requiring only consent of unwed
mother for adoption satisfies Due Process Clause where it included a "best interests of the
child" test permitting consideration of the peculiar facts of each case).
" Caban v Mohammed, 441 US 380 (1979).
83 Id at 394.
88 Comment, An Analysis of the Unwed Father'sAdoption Rights in Light of Caban v
Mohammed: A Foundationin FederalLaw for a Necessary Redrafting of the Pennsylvania
Adoption Act, 25 Vill L Rev 317, 330 (1979-80).
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THE UNIVERSITY OF CHICAGO LEGAL FORUM
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wishes to assert those same or similar rights when the child is yet
unborn. The Supreme Court was reluctant to truncate any paternal rights in an adoption proceeding absent a parental fitness hearing,"1 even though such a hearing may infringe the mother's fundamental right to consent to an adoption or determine the custody of
her child. It seems to follow that the Court should allow the same
right to the father of a child prior to an abortion procedure.9 6
Doe v Smith suggests the propriety of a "parental fitness" test
in an abortion context because the opinion emphasizes the importance of surrounding circumstances to the balancing of the parents' respective rights.9 In Doe, the trial court judge, affirmed by
both the Indiana Supreme Court and, on emergency appeal, by
Justice Stevens, weighed evidence such as the fact that "the parties are not married, that there is no suggestion they will ever reunite, that the Plaintiff is able to father other children and. . has
showed substantial instability in his marital and romantic life" to
conclude that "in this particular case the balancing would be in the
mother's favor."98
The balancing tests in Quilloin, Caban and Doe show that in
assessing the father's commitment to the family, the question is
not necessarily whether the father remains within the traditional
institution of marriage in order to show his commitment to family,
but whether he has assumed certain duties and commitments nor" See, for example, Stanley, 401 US at 645.
96 One might argue here that cases such as Quilloin and Caban remain distinct from
the abortion context for the simple reason that in the former cases and elsewhere in family
law, the rights to companionship arise only because the child already exists. However, the
abortion dispute does not center around the definition of when life begins. Roe specifically
avoided the question; rather, the Court indicated that, regardless of when life begins, the
mother's interests in privacy remain strong enough during the first trimester to prevail over
any countervailing interests. Roe, 410 US at 163-64; see also Justice White dissenting:
The Court for the most part sustains this position: During the period prior to the
time the fetus becomes viable, the Constitution of the United States values the
convenience, whim, or caprice of the putative mother more than the life or potential life of the fetus; the Constitution, therefore, guarantees the right to an abortion as against any state laws or policy seeking to protect the fetus from an abortion not prompted by more compelling reasons of the mother.
Id at 195. As a result, a state might, by statute, constitutionally define the point at which
life begins, and establish that a father has a certain protectable interest in the life from that
point. But see Webster v Reproductive Health Service, 57 USLW 5023 (July 3, 1989), which
raised but did not answer the question whether legislative findings in the preamble to the
state abortion bill that "the life of each human being begins at conception" and that "unborn children have protectable interests in life, health, and well being" are facially
unconstitutional.
'
108 SCt 2136, 2137 (1988).
&8 Id.
PATERNAL INTERESTS
377]
mally associated with, but not necessarily confined to, the institution of marriage and the traditional family unit. More and more,
parents share the duties associated with marriage/family relationships in lieu of delegating them to the traditional roles of "mother"
and "father." In recognition of this, the courts in Quilloin and Doe
measured the degree to which the man showed his commitment to
child-rearing and the family, whether through the assumption of
traditional or non-traditional duties of a father. The balancing
processes used by these courts suggest that the rights of a father to
the custody of his children and to children fathered by him but not
yet born increase concomitantly with the increase in his assumption of duties in childrearing and "family" commitments.
2. The State's Interest in Procreation
A state may protect rights associated with, but not actually
confined to, the traditional family unit, if the individual claiming
such rights exercises the duties associated with the family. The
traditional family "unit" nevertheless continues today to play an
important social role and, accordingly, the state should strive to
preserve the traditional "unit," that is a marriage with procreative
potential. The Supreme Court emphasized in Skinner v Oklahoma
that "[m]arriage and procreation are fundamental to the very existence and survival of the race"99 and elevated the right to procreate and the right to offspring to "fundamental" rights. 10 0 A state,
in its efforts to protect these fundamental rights, could accord the
right to procreate special protection within the context of a marriage.101 As long as the viability of marriage remains a prerequisite
for the success of the family unit, procreation, often an important
component of marriage, also merits the state's protection.
A state abortion regulation which provides that, in certain circumstances, a father has the right to protect his own procreative
potential, may promote and support the institution of marriage. A
male will more willingly enter a marriage commitment knowing
that, once there, his fundamental right to procreate will be recognized. In addition, both males and females will regard marriage as
an institution whose procreative potential must be respected and
considered in the decision to marry. Finally, if both parties are assured protection of their respective interests in procreation, they
316 US at 541 (1942).
100 Id.
10)
Poe, 517 F2d at 797 (suggesting state could protect man's procreative rights by mak-
ing unconsented abortion ground for divorce).
394
THE UNIVERSITY OF CHICAGO LEGAL FORUM
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will be more willing to assume related marital duties.' 02
It should be noted that the Court in Danforth raised the legitimate concern that a pregnancy imposes certain burdens on the
parties that cannot be seen as equal. 0 As discussed earlier, some
courts have interpreted this language to mean that under no cir04
cumstances may a male assert any right to the unborn offspring.1
But a more reasonable reading views Danforth as recognizing the
greater burden borne by the woman by thus placing the burden on
the male to show his "worthiness" to receive state protection of his
interest. The standard employed by the trial court in Doe v Smith
and by the Supreme Court in Quilloin and Caban is consistent
with this reading. In both the adoption and abortion contexts the
courts considered: the history of the relationship between the
mother and the father, the ability of the father to form stable relationships, 105 whether the father had any other children and, if so,
whether he had accepted any significant responsibility in their support and upbringing. 0 The rationales in Quilloin and Doe incorporate a similar analysis: Because the mother physically bears the
child and has traditionally assumed its nurture and care, the
choice in either the abortion or adoption situation remains with
the mother unless the father can convince the court of a substantial interest in the child. Such a process of balancing both respects
the weight of the burden on the mother and the interest of a genuinely concerned father.
IV.
PATERNAL INTERESTS AND THE PROPOSED STATUTE
Both the Constitution and strong state interests compel at the
least a consideration of the rights and interests of a father before a
mother may exercise her right to choose to have an abortion. Roe
gave the states limited license to regulate abortion in light of their
own "compelling interests.' ' 0 7 A constitutionally sound and inter02 Of course, regulation of abortion should not absolutely create a right for a male to
procreate with a particular female or, more generally, an absolute right to procreate (for
example, the state would have no right to force a woman to bear a child for a man who
cannot find a wife). Nor can it be ignored that a husband/male partner may also thwart
procreative potential within the relationship simply by practicing celibacy.
03 "Inasmuch as it is the woman who physically bears the child and who is the more
directly and immediately affected by the pregnancy, as between the two, the balance weighs
in her favor." 428 US at 71.
"o
See Planned Parenthoodof RI, 598 F Supp at 642 and Eubanks, 604 F Supp at 148.
100 Doe, 108 SCt at 2137.
'o' Caban, 441 US at 393.
107 410 US at 153-55.
PATERNAL INTERESTS
377]
est-sensitive state statute might provide a procedure for notice and
a hearing at which a prospective father could assert any interests
he has as a prospective parent.'" 8 The prospective father is first
assured that he will receive notice that the prospective mother intends to have an abortion. The statute provides that a judge must
then expeditiously hold a hearing and weigh the interests of both
parties. He may enjoin a woman from obtaining an abortion only if
the father's interests substantially outweigh both the mother's interests in obtaining the abortion and the additional burden she
would bear from having to carry the child to term. The procedure
bears some similarity to other procedures that the court has enforced in the contexts of adoption and parental consent to
abortion. 0 9
The greatest benefit of the statute lies in the way it works to
limit the role of the judiciary in the process without neglecting any
interest which should be involved in the decision. First, the initial
simple requirement of notice would respect the fact that the
mother has the burden of bearing the child physically. Only when
the father actually responds to such notice will the mother's right
to abortion in any way threatened. Secondly, the hearing requirement should have a "weeding effect" on the number of fathers who
wish to exercise their rights. The burden of collecting evidence and
presenting it to a judge in order to meet the set of criteria established by the legislature may deter many fathers whose real interest is not, in fact, the child but perhaps simply frustrating the
rights of the mother.
Additionally, the proposed statute limits the burden on the judiciary by requiring that the initial balancing procedure be performed at a hearing rather than at a full-fledged trial. Such a hearing would allow all relevant evidence to be presented and weighed
by a judge without clogging court dockets. While some fathers may
appeal the result of the hearing, the process may further deter frivolous suits and support only the appeals of fathers who have legitimate interests and concerns in the fetus. As a practical matter,
however, appeals from a decision against the father are likely to be
few. A father who fails to get a court order halting the abortion at
an initial hearing has effectively lost, as the abortion will take
See Appendix p 398 for one example of such a statute.
See, for example, H.L. v. Matheson 450 US 398, 400 (1987) (upholding a Utah statute requiring a physician to notify, "if possible," the parents or guardian of a minor woman
seeking to procure an abortion). See also Quilloin v. Walcott, 434 US 246, 248-49 (1978)
(upholding "best interests of the child" standard in adoption hearing).
108
396
THE UNIVERSITY OF CHICAGO LEGAL FORUM
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place.1"'
The statute does not provide specific criteria which would
guide the judge presiding over a hearing regarding the validity of
the father's interests. Although such criteria should be tailored to
the interests of the particular state, they might include those advanced by the trial judge in Doe v Smith: whether the father has
other children to whom he has shown some devotion and responsibility, and whether he has displayed some stability in his marriage
or other relationships.
CONCLUSION
The Supreme Court, by refusing to hear Conn, declined to resolve the troubling and complex issue of whether a father may assert certain paternal rights against the mother's right to an abortion. While the extent of the physical and emotional burden
imposed upon a woman who carries a child to term must be recognized, it appears constitutionally manageable for a legislature to
enforce the rights of the male without unduly infringing on any
right of the woman. The Due Process and Equal Protection
Clauses accord the same protection to a male's right to father and
raise children as to the female's right to have an abortion. In addition, states have strong interests in maintaining marriage and family relationships-interests which incidentally protect many paternal rights. States, therefore, should be allowed to weigh paternal
rights as part of a fair balancing procedure. Many fathers have increasingly assumed the responsibilities and duties of childrearing;
accordingly, if a father demonstrates a substantial interest in the
fetus, his rights, both those protected by the Constitution and
11 The very fact that a father's assertion of his rights may be preempted by the
mother's decision to have an abortion within the first trimester perhaps points to the need
for state regulation of abortion during that critical time. If the Roe prohibition of first trimester regulation remains good law, any rights or interests a father might hold seem illusory. While the father must wait until the second trimester, at least, to exercise his rights, a
mother may block his exercise of those rights simply by invoking her unfettered right to
abortion during the first trimester. But such a result seems contrary to notions of equality
or fairness. As Justice O'Connor has pointed out, state interests are no less compelling
before viability than after. Dissenting in City of Akron, O'Connor, joined by Justices White
and Rehnquist, wrote: "potential life is no less potential in the first weeks of pregnancy
than it is at viability or afterward. [The] choice of viability at the point at which the state
interest in potential life becomes compelling is no less arbitrary than choosing any point
before viability or any point afterward." 462 US at 461. Similarly, paternal interests cannot
be ignored until the arbitrary point of "viability" at which time they suddenly assume significance. Rather, if the rights exist, they must receive due consideration at any point of the
woman's pregnancy.
377]
PATERNAL INTERESTS
397
those guarded by the state, gain in significance. Such rights and
interests cannot simply be discarded, absent a fair evaluation of
the circumstances, in favor of a woman's unilateral right to an
abortion.
Roe established that a right to abortion is premised upon a
balancing of all relevant interests. Although the Court has left
open the question whether paternal rights are relevant and thus
may be balanced against a woman's right to an abortion, parental
rights' jurisprudence and policy seem to compel, in certain circumstances, consideration of paternal interests.
398
THE UNIVERSITY OF CHICAGO LEGAL FORUM
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Appendix
Proposed Statute
I. Any woman seeking to procure an abortion must first provide
the father with written notice of the impending procedure. The
woman must use reasonable means of ascertaining the whereabouts
of the father, if such information is not readily attainable. The notice must include:
(1) Information concerning the date, location, and choice of
physician for the proposed procedure;
(2) A date for a hearing, no sooner than 21/2 weeks and no
later than 6 weeks after such notice is sent, at which a father may
have the opportunity to challenge the woman's decision to have
the abortion.
II. If a father, after receiving notice, neither appears at the scheduled hearing nor in any other way responds to the notice, he forfeits any opportunity to assert his rights in the woman's decision
to procure the abortion. If he appears at the scheduled hearing or
at one rescheduled for matters of convenience, the hearing should:
(1) be attended by the woman, her physician, and the father of
the fetus and presided over by a qualified, state-appointed judge;
(2) allow the father the opportunity to present evidence, at his
own discretion, of a genuine interest in the fetus and its well-being.
If, upon a review of all the evidence presented, the judge finds that
the father's interests substantially outweigh both the interests of
the mother in procuring the abortion and the additional burden of
bearing the child, the judge must enjoin the woman from procuring
the abortion. If the judge finds that the father's interests do not
substantially outweigh those of the mother, the judge must grant
the mother permission to proceed with the abortion and must provide her with written evidence of the permission.
III. Prior to performing an abortion, a physician must require from
the mother either:
(1) A copy of the notice sent to the father, informing him of
the proposed procedure and his opportunity to exercise his rights
but to which he has failed to respond within the specified time
period, or
(2) the written permission of the judge having presided at the
hearing and having determined that the mother's interests outweigh those of the father.